Legislature(1997 - 1998)
02/21/1997 09:03 AM Senate HES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATE HEALTH, EDUCATION AND SOCIAL SERVICES COMMITTEE
February 21, 1997
9:03 A.M.
MEMBERS PRESENT
Senator Gary Wilken, Chairman
Senator Loren Leman, Vice-Chairman
Senator Lyda Green
Senator Jerry Ward
Senator Johnny Ellis
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
SENATE BILL NO. 3
"An Act authorizing prosecution and trial in the district court of
municipal curfew violations."
-MOVED SB 3 OUT OF COMMITTEE
SENATE BILL NO. 70
"An Act defining the offenses of unlawful discharge of a firearm;
and relating to the commission of those offenses by minors."
-MOVED SB 70 OUT OF COMMITTEE
SENATE BILL NO. 66
"An Act relating to the collection by victims of restitution from
prisoners; relating to the definition of `serious provocation' as
a defense to murder; relating to the definition of `incapacitated'
for sexual offenses; creating the crime of interfering with a
report of a crime involving domestic violence; relating to the
safety of victims, other persons, and the community in setting bail
or conditions of release; relating to mental examinations of
victims in criminal prosecutions; relating to the rights of victims
of crimes under AS 12.61; relating to access to certain records of
the Violent Crimes Compensation Board; relating to medical death
investigations; amending Alaska Rules of Criminal Procedure 5 and
6, Alaska Rules of Evidence 404 and 615, and Alaska Delinquency
Rule 3; and providing for an effective date."
-SCHEDULED, BUT NOT HEARD
PREVIOUS SENATE COMMITTEE ACTION
SB 3 - No previous action to record.
SB 70 - No previous action to record.
SB 66 - No previous action to record.
WITNESS REGISTER
Senator Drue Pearce
State Capitol Bldg.
Juneau, AK 99811-1182
POSITION STATEMENT: Sponsor of SB 3.
Mr. Chris Christensen, Staff Counsel
Alaska Court System
820 W 4th Ave.
Anchorage, AK 99501-2005
POSITION STATEMENT: Commented on SB 3.
Mr. Elmer Lindstrom, Special Assistant
Department of Health and Social Services
P.O. Box 110601
Juneau, AK 99811-0601
POSITION STATEMENT: Commented on SB 3.
Ms. Margot Knuth, Assistant Attorney General
Department of Law
P.O. Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Commented on SB 3 and SB 70.
Ms. Anne Carpeneti, Assistant Attorney General
Department of Law
P.O. Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Commented on SB 3.
Captain Ted Bachman, Commander
Administrative Services
Alaska State Troopers
5700 Tudor
Anchorage, AK 99507
POSITION STATEMENT: Commented on SB 70.
Mr. Blair McCune, Deputy Director
Alaska Public Defender
900 W 5th, Ste 200
Anchorage, AK 99501
POSITION STATEMENT: Commented on SB 3 and SB 70.
ACTION NARRATIVE
TAPE 97-16, SIDE A
Number 001
SB 3 MINOR'S CURFEW VIOL. HEARD IN DIST. CT.
CHAIRMAN WILKEN called the Senate Health, Education and Social
Services (HESS) Committee to order at 9:03 a.m. and announced SB 3
to be up for consideration.
SENATOR PEARCE, sponsor of SB 3, said her office became aware this
fall of a problem in Juneau when plans for a youth curfew were set
aside because the Borough had no avenue to prosecute offenders.
This bill seeks to relieve municipalities from the burden of
prosecution and hopefully allow for more effective and expeditious
handling of these offenses. She said there is an interest in
Anchorage in having the same sort of relief.
SENATOR PEARCE said currently, juvenile offenses other than
traffic, tobacco, fish and game, parks and recreational facilities,
or alcohol violations, are handled through municipal courts where
they exist, or are not handled at all because of the Division of
Family and Youth Services caseload.
SB 3 would put a uniform approach in place to handle curfew
violations. It will enable those communities who so wish to put a
curfew ordinance into effect, with the ability to prosecute. It
will mandate that all juvenile curfew violations be handled in
District Court. Alaska Delinquency Rules will not apply and the
minor accused of the offense will be charged, prosecuted, and
sentenced in the district court in the same manner as an adult.
When a minor is charged, prosecuted, and sentenced for an offense
under this subsection, the minor's parent, guardian, or legal
custodian will be present at all proceedings.
She said there are letters of support from the City and Borough of
Juneau Mayor Dennis Eagan, the Mayor's Task Force on Youth in
Juneau, and the Alaska Peace Officers Association. The
Municipality of Anchorage is very interested and have some
suggestions along these lines.
She noted the Troopers have a $0 fiscal note, the Court System has
a $24,000 fiscal note, and the other fiscal notes are all $0.
Anchorage Assemblyman Joe Murdy said he believes they should
authorize community work as one of the penalties for violating the
curfew. He thought the child might learn from that community
service and also because there are some families who will not pay
the fine.
Number 102
SENATOR WARD asked if the courts cannot already give community
service. SENATOR PEARCE thought Juneau found it could not even
prosecute the cases, but SB 3 would allow them to do so.
SENATOR GREEN asked how many cities presently have their own court.
Mat-Su does not have a local court and so this would not apply to
them. SENATOR PEARCE believed that was correct.
SENATOR LEMAN liked the concept, but noted that it requires action
to a minor the same as for an adult. He said the Governor vetoed
his car theft bill that was similar because it would be too tough
on juveniles. Is there any assurance that the Governor would find
a curfew violation so significant that he would want to prosecute
juveniles in an adult court?
SENATOR PEARCE said she had not sought such an assurance. She
thought the Legislature should go forward with the idea, however.
Number 168
CHRIS CHRISTENSEN , Staff Counsel, Alaska Court System, said the
idea of curfew violations for juveniles is a popular one.
Anchorage adopted a municipal ordinance making curfew violations a
civil offense rather than a criminal one a little over a year ago.
During the first 12 months of Anchorage's system about 1,500 curfew
citations to juveniles were issued and a total of 2,000 over the
first full year in operation is expected. Since this is a civil
system Anchorage uses a municipal hearing officer to hear the
cases. The juveniles have the right to appeal the decision, but
thus far there has been only one appeal. Currently the Anchorage
system is not having any impact at all on the court system.
Mr. Christensen anticipated that the major municipalities will
enact curfew ordinances as a way of dealing with an increase in
juvenile crime and gang activity. SB 3 would allow municipalities
to adopt criminal ordinances for which the penalty can be jail
time, mandatory community service, or loss of a valuable license.
Such ordinances would require the state to provide a jury trial.
In addition, SB 3 would allow municipalities to require mandatory
court appearances by juveniles. All citations which are contested
will come before the court system, unless the municipality decides
to pay for its own municipal hearing officer.
Based upon statistics generated during the first year of
Anchorage's civil curfew system, the Court System fiscal note
assumes 3,000 citations per year would be generated statewide.
Noncontested citations may be applied directly to the
municipalities; however, defendants may contest citations or enter
guilty pleas at court. Thus, many persons subject to this section
will come before a district judge and/or pay citations through the
court's accounting system. This note assumes that no municipality
will require a mandatory court appearance(probably an incorrect
assumption), and that one-third of juvenile citations will be run
through the court system; this is the rate at which the courts deal
with other municipal citations. It should be kept in mind that the
rate at which juveniles contest citations will depend on the size
of fines set by the municipalities in their ordinances. The note
assumes that no municipality will criminalize curfew violations and
will not require six-person jury trials. This last assumption is
probably optimistic, in that some municipalities will likely
criminalize repeat offenders or offenses by business owners who
allow minors to remain on-premises after curfew, if only to impose
community service on the offenders.
SENATOR PEARCE said the intent was to give communities tools to
deal with juvenile crime. She understood that there are cost
implications, but hoped SB 3 would save money in the long run.
MR. CHRISTENSEN said statistics show that keeping kids off the
streets effectively cuts down on crime.
Number 335
MS. MARGOT KNUTH, Assistant Attorney General, said this year one of
her principle functions is representing the Governor's Children's
Cabinet on legislation that relates to youth and justice. This
last year she worked with the Governor's Conference on Youth and
Justice, acknowledging Senator Green's participation, and said she
ended up being the reporter for the Conference which produced two
reports. The Conference was a bi-partisan effort to address
juvenile crime. There is a sense in Alaska that there is a problem
that needs to be addressed. The Conference focused on three
courses of action: prevention, intervention, and prosecution.
One item they heard most from communities was that Alaska is
responding only to the serious juvenile offenders and there have
been no swift appropriate consequences for low-level offenders. It
makes sense that limited resources would be applied to only the
most serious cases. However, there is a whole population receiving
no punishment which creates a sense that nobody is watching, that
it does not matter, and that leads to the possibility of the
escalation of offenses. The major message from the Conference was
that it is appropriate for the state to delegate to communities the
ability to respond, in particular, to the low-level offenses.
SB 3 attempts to address "at risk" kids, not serious offenders.
Ms. Knuth offered a conceptual amendment to the effect that DHSS be
able to delegate to communities the ability to respond to low-level
offenses. She said this concept is embodied in SB 69.
Ms. Knuth said it makes a great deal of sense to let communities
take action that seems appropriate and to not necessarily specify
what the community should do because they favor different
approaches.
Number 392
SENATOR GREEN commented that Ms. Knuth said just the opposite of
what the bill does which is sending the issue to the state. MS.
KNUTH responded that this bill does send it to the court system and
that is part of the problem rather than the solution. Mr.
Christensen testified and DHSS will testify that they are over-
burdened in most areas already. There are children who are already
being sent to detention for tobacco violations and other minor
offenses which creates a problem in terms of very limited space and
the need for that space to be used by the more serious offenders.
Ms. Knuth said the conceptual amendment would be a diversionary
system from court intervention. She thought the court system
needed to be used and reserved for prosecuting criminals. At-risk
youth need to have a tool in the state system allowing communities
to address the youth in an intervention setting.
Number 410
SENATOR WARD asked what would be the biggest deterrent,
intervention or treating it as a crime. MS. KNUTH said there is a
deterrent effect to criminalizing behavior, but in terms of
effectively responding to a child's particular circumstances,
intervention is a lot more effective in the long-run.
Nation-wide criminal laws are effective only when the perpetrator
believes they will be caught and there will be sanctions. Simply
having a law on the books does not do anything. That is what the
idea of community empowerment is getting to. When the state is in
control there has not been enforcement nor consequences. If
communities are allowed to respond, a level of commitment will
result in a much higher percentage of responses. This is what the
communities want.
Number 437
SENATOR PEARCE said she could see empowering local communities for
intervention, if they need statutory authority to do that.
However, that might not get to the whole problem and perhaps, a two
tier system might work. A community would have the authority to
intervene with maybe a first curfew offense. If there is a second
offense, the community would have the ability to go to a
prosecution at the state level. Taken together this might be an
even greater deterrent.
SENATOR WARD asked how many juveniles had been incarcerated for th
possession of tobacco. MS. KNUTH deferred to someone from HESS to
answer that.
SENATOR PEARCE said she had spoken with Judge Froehlich in Juneau
who estimated that in Juneau District Court about 75% of the youth
who are curfew violators are also violators of the alcohol and
tobacco subsection. Judge Froehlich did not think there would be
the pyramid effect because many of the children are the same.
Number 479
MR. ELMER LINDSTROM , Department of Health and Social Services, said
that SB 3 would add curfew violations to those offenses placed
under the authority of the District Court. This creates a possible
concern that violators who fail to appear in court under a citation
may be subject to detention for failure to appear, or contempt of
court, or non-compliance with a sentence order.
Mr. Lindstrom said in the calendar year of 1996 there were 68
instances where youth were detained in a youth facility for minor
consuming or a tobacco offense. The most significant impact has
occurred here in Juneau at the Johnson Youth Center where
approximately 14% of its total admissions were related to minor
consuming and tobacco cases. The detention staff in each facility
assumes the responsibility of transporting the youth to court,
maintaining supervision during the court proceedings, and
processing discharges if the youth is released. Although the
statute places authority for these cases outside the department, by
default, the department's detention resources are used to
facilitate the judicial process for these youth.
In calendar year 1996, Anchorage police issued over 1,000 curfew
citations under municipal ordinance which took effect in January
1996. At present these cases are processed as a civil matter
through an administrative hearing officer. Transferring these
cases to the district court could have a significant impact on the
department's detention resources.
Mr. Lindstrom explained that an undetermined fiscal note was
submitted because it is difficult to estimate what will happen
within different municipalities. The department does not know
which ones will put in place a new curfew ordinance, to what extent
local police departments will enforce the curfew and the behavior
of individual district court judges. As a cautionary note, there
may well be an impact on our already over-crowded detention
facilities. He supported Ms. Knuth's testimony and her comments on
the Governor's Conference on Youth and Justice.
SENATOR WARD asked about the youths who were recently fined $50
here in Juneau for smoking; was it a state or local fine. MR.
LINDSTROM said that the youths probably received citations issued
by the local police department and the fine would be paid to the
City and Borough of Juneau. If the fine is not paid, the youth
will have a court appearance; and if the youth fails to appear, the
youth may well be cited for contempt. At that point the youth
would become a resident of our youth facility for a period of time.
SENATOR WARD noted that it had a chilling affect on two kids he
knows. He asked if there were figures for the number of minors who
were charged with possession of tobacco in Alaska. MR. LINDSTROM
did not have the number with him, but repeated that in 1996 there
were 68 detention admissions related to minor consuming or
possession of tobacco.
SENATOR WARD said it appeared to him that Juneau, by far, is
enforcing the $50 fine. He suggested that fines reduced the
numbers of those at risk for smoking and the same theory would
likely work for a curfew on a statewide basis. MR. LINDSTROM
agreed that Juneau has been very aggressive in the last year and
certainly Judge Froehlich has been very aggressive in dealing with
the tobacco use issue. However, the method of dealing with these
issues has some impacts and one is that it now represents 14% of
admissions in the Johnson's Youth Center. The Governor's
Conference suggests there may be other ways to have an impact that
will not have those consequences on our detention facilities.
SENATOR PEARCE asked what acts actually put them in the Johnson
Youth Center. MR. LINDSTROM replied that the youth probably did
not pay the fine or did not appear in court and were found in
contempt of court.
SENATOR PEARCE asked what power the Conference recommended to
delegate to local authorities that would have more impact. If
youth are already ignoring fines or not showing up in courts, being
softer on them would not do much good.
SENATOR GREEN said this was addressed last year in a bill that
pertained to issuing citations to youth for smoking. Then it was
said to be too much trouble and the "kids on the street" were more
of a problem. SENATOR PEARCE asked if citations are not used, how
do 14% of Johnson's admissions come from these youth. SENATOR
GREEN assumed that happened since the hearings last year.
MS. KNUTH explained that Juneau is an anomaly in the State and
Judge Froehlich is on a one person crusade for juvenile tobacco and
alcohol offenders. He is exceptional in the diligence with which
he is pursuing these kids and there is no one else who is throwing
children into detention for tobacco violations. She said there is
the question of whether you can put these children into detention
without offering them a jury trial on the contempt proceedings.
She did not know whether his responsiveness would be able to
continue necessarily.
MS. KNUTH said that when the sanction is available at the court
level, it is very effective. The problem is that it is not being
used for most offenders and therefore there is no impact on the
behavior in the manner desired. So the concept of community
intervention is that a much higher percentage of the violators
would be held accountable in order to impact the behavior.
She agreed with the need for a stair-step approach to be available.
Community work service was raised as an available sanction for
this, but Ms. Carpeneti in the Criminal Division, said that
currently in Alaska, if community work service can be ordered, the
penalty is sufficient to have the right to a jury trial.
Number 538
MS. ANNE CARPENETI, Assistant Attorney General, said that last year
the zero tolerance for children drinking and driving had
alternative penalties. The Booth decision holds that the
possibility of community work service did give rise to the right to
a jury trial and court appointed counsel.
MR. CHRISTENSEN commented that there are two kinds of work service.
One is when you give someone a fine with the option of doing work
service instead of the fine. What is talked about here is an
actual order to do the work. In the eyes of the law ordering
someone to work, essentially involuntary servitude, is considered
the legal equivalent of putting them in jail.
SENATOR LEMAN wondered if that was consistent with the
constitutional change made in 1994 when restitution was put in
place as one of the five conditions for corresponding to victims'
rights. Community work service could be used in the same vein to
pay back society. MS. CARPENETI did not think that issue had been
raised in the Booth case. She assumed that would be different from
restitution, because that is paying back an individual rather than
doing work for the good of the community. SENATOR LEMAN thought
restitution could be in different forms other than money.
CHAIRMAN WILKEN indicated the need to act on the amendment before
the committee. If action on the Health and Social Service
component is desired, that could be considered in Judiciary.
Number 500
CAPTAIN TED BACHMAN , Alaska State Troopers, said he was available
to answer questions.
MR. BLAIR MCCUNE, Deputy Director, Alaska Public Defenders,
identified municipal prosecutions as one of the impacts on the
agency which he expected to be minimal. In most areas,
municipalities contract with private attorneys who represent
children or adults. If the prosecution is in Superior Court for a
juvenile delinquency action, he would represent the child even if
a municipal ordinance is at issue. Currently, the curfew
violations in Anchorage are handled as civil penalties and as Ms.
Knuth and Ms. Carpeneti mentioned, it is difficult to say just what
civil penalties are.
Number 478
SENATOR WARD moved to pass SB 3 from committee. SENATOR LEMAN
objected. Senator Leman wanted to include with a note to the
Judiciary Committee to consider the issues discussed today. He,
then, removed his objection. There were no further objections and
is was so ordered.
SB 70 UNLAWFUL DISCHARGE OF A FIREARM
CHAIRMAN WILKEN introduced SB 70 as the next order of business.
SENATOR DONLEY, sponsor, said SB 70 addresses a gap in our current
criminal justice laws. Currently it is only a misdemeanor in
Alaska to discharge a firearm into a building, even if there's a
high possibility that someone is living in that building. SB 70
elevates that particular misuse of a firearm to a felony. Under
existing law a felony assault requires proving the person knew
someone was inside the structure.
The first section exempts peace officers from the scope of this
legislation. The second section restructures the unlawful
discharge of firearm laws. Senator Donley explained that the word
"building" and not just "dwelling" is necessary in order to cover
the circumstances of someone shooting into a store or a place where
people work. The real change appears on page 2, lines 1-4 that
makes unlawful discharge of a firearm in the second degree a Class
B felony.
Senator Donley acknowledged that when statutes are amended,
especially in criminal law, there are a lot of other impacts. He
tried to look at othere areas where it would be appropriate to
modify due to the existence of this new crime. One that seemed
appropriate to him was the most serious felony definition which is
the trigger for the "three strikes, you're out." It seems
appropriate that shooting a firearm into a building or dwelling
where someone may be should fall under a serious felony in the
first degree where there is risk to people.
Section 4 is a list of all the misdemeanors and felonies that
disqualify people from having a concealed weapon permit and he felt
shooting into a building that probably has people in it should be
on the list. Section 5 deals with juveniles and is the reason
SB 70 is in the HESS Committee. This section adds unlawful
discharge of a firearm in the first and second degree to the list
of felonies that create an automatic waiver situation for juveniles
over 16 years of age.
Senator Donley believed these are very serious crimes and seem to
parallel the existing provision of arson in the first degree which
has the imminent threat to safety of the people involved.
Section 6 is conforming also with the existing law.
Number 356
SENATOR WARD asked him to comment on the cost of the bill. SENATOR
DONLEY responded that due to the automatic waiver provisions in the
legislation, it is a frequent policy of the Department of
Corrections that any time the department see a juvenile waiver bill
they request new facility. The estimates for the actual number of
juveniles who would be waived is approximately two per year. These
are pretty bad kids and there are not a lot of them. Others who
would be waived under the Class B provision numbered about six, for
an impact of possibly eight additional juveniles per year. The
Department of Corrections is asking for a new 34 bed facility to
deal with that number. Senator Donley acknowledged the need for
additional beds in Alaska in both the juvenile system and the adult
correctional system; but he thought the issue of overcrowding
should be dealt with separately.
Number 324
CHAIRMAN WILKEN asked him to explain a possible automatic waiver.
SENATOR DONLEY explained that two or three years ago the
legislature adopted an automatic waiver for juveniles over the age
of 16 who commit unclassified or Class A felony crimes against a
person. It was decided that as a policy matter that these youth
should automatically be treated as adults, if the youth are charged
with those serious crimes. Included in that category is arson in
the first degree. This legislation includes in that category
unlawful discharge in the first degree which includes drive-by
shootings and unlawful discharge in the second degree which is
shooting in a building with a reckless disregard for the risk that
the building is occupied.
CHAIRMAN WILKEN asked who decides if the building is occupied.
SENATOR DONLEY stated that it is an automatic waiver if the person
is over 16 and is charged with these crimes. It becomes a
possibility that the youth would be waived to adult court if under
16 and the youth fail, by a preponderance of evidence, to indicate
that they are amenable for treatment by their age of majority.
MS. KNUTH, Department of Law, again appeared representing the
Governor's Childrens' Cabinet. An automatic waiver was one of the
tools that was discussed by them as a means of responding to
escalating juvenile crime. The Conference concluded that
increasing the automatic waiver offenses is inappropriate and a
dual sentencing option was recommended. In dual sentencing a
juvenile receives both the juvenile sentence disposition that the
judge believes is appropriate for that offense and simultaneously
receives an adult sentence for the offense. If the juvenile
complies with the terms of the juvenile sentence, that's all that
happens. If the juvenile commits a new felony offense or does not
comply with the terms and conditions of the juvenile sentence, then
the juvenile can be brought back before the court and have the
adult sentence imposed. Therefore instead of making a decision at
the outset of basically giving up on the kid, it sets up a
situation where the responsibility for what happens with the
juvenile is placed back with the juvenile.
Ms. Knuth said that Senator Donley's bill has two automatic waiver
offenses that are under consideration. One is the unlawful
discharge of a firearm in the first degree which is a Class A
felony and the other is the unlawful discharge in the second
degree. She thought it was a policy call within this body whether
unlawful discharge of a firearm in the first degree is so like
crimes against a person in arson that it is appropriate for it to
be on the automatic waiver list. What is of concern is unlawful
discharge of a firearm in the second degree because that is just a
Class B felony offense and there are no automatic waiver provisions
for any Class B felony offenses. That would be a new direction to
turn to in automatic waiver. She suggested that offense would be
more appropriate for the dual sentencing option in the Governor's
bill.
SENATOR DONLEY agreed with her analysis, but he had not been sold
on the dual sentencing concept. He thought an automatic waiver was
appropriate, even though it is listed as a Class B felony, because
it is such a serious crime to discharge a firearm towards a
building when there is a high probability of people being inside.
The distinction between the first and second degree is whether or
not you are in a vehicle when you shoot at that building. It seems
that the actual threat to people is the same between the two.
SENATOR LEMAN said one of the other options would be to make a
walk-by shooting equivalent to a drive-by shooting.
MS. KNUTH noted that currently first degree offenses are committed
under circumstances manifesting substantial and unjustifiable risk
of physical injury to a person which is a higher standard than we
now have in the second degree offense which is committed with
reckless disregard for the fact that the building is occupied. You
would lose some class of offenses if you were to elevate it to the
first degree. There would be some conduct that could not be
prosecuted and as a felony it would fall back down to the current
misdemeanor level.
SENATOR DONLEY said he thought it was up to the Committee to
decide. He tried to find other areas of the statute to make
consistent with this.
CAPTAIN TED BACHMAN , State Troopers, said he wanted to comment on
Section 2 which creates the new crime. He supported any tools
available to stop what seems to be an ever increasing incidence of
drive-by shootings in urban areas and other criminal uses of
firearms. His only reservation about this section is that all the
crimes that are created are presently covered by existing statute.
He thought it was much simpler to not create new crimes, but if
there are new provisions, to add those to existing misconduct
involving weapons crimes.
MR. MCCUNE, Public Defenders Office, favored a two-tier approach.
Whether it is appropriate to make unlawful discharge of a firearm
in the first or second degree is a policy decision. He asked the
committee to consider whether it was appropriate to make an
automatic waiver or whether it should be considered in conjunction
with the other legislation. Mr. McCune was concerned with how the
new Section 2 would fit into the existing assault statutes.
Assault in the third degree says if a person recklessly places
another person in fear of imminent serious physical injury by means
of a dangerous instrument, they are guilty of a Class C felony and
he was not sure how making it a Class B would fit in. He was also
concerned with the "three strikes" provision.
SENATOR DONLEY responded that assault in the third degree is
shooting in the direction of somebody. There has to be intent and
a victim. That is why he wants to raise shooting at a structure
when there is a probability that someone is in it to a felony.
SENATOR LEMAN moved to pass SB 70 from committee with individual
recommendations and with the accompanying fiscal notes. SENATOR
ELLIS asked if the committee was going along with the way the bill
was written in relation to the juvenile aspect of things. CHAIRMAN
WILKEN said he did not understand the trade-offs between first and
second degree and how they lose in prosecution. SENATOR LEMAN said
he thought that even though it is a Class B felony which is a new
category, it is serious enough to elevate it, in his mind, to the
automatic waiver level. He noted that he served on the conference
committee that dealt with the automatic waiver bill. He preferred
to see the bill stay the way it is.
SENATOR ELLIS asked Senator Donley to go through the burden of
proof that is placed on juveniles to prove if they are under the
age of 16 they are amenable to treatment. He thought this bill
deserved more discussion.
TAPE 97-17, SIDE A
Number 001
SENATOR DONLEY said in the past it was very difficult for the State
to prove that someone will not change. The problem worsened when
the courts determined a youth could not be forced to undergo any
kind of examination because that might violate the youth's fifth
amendment right against self incrimination. Now there are judges
who have to make decisions about which juveniles could rehabilitate
themselves by the time they are 18. Therefore the bill reversed
the presumption, putting it on the person who committed the
criminal act, only for the most serious ones, to show that the
youth can be rehabilitated before reaching the age of majority.
Because of that, it is in the juvenile's own self interest to get
a psychological examination, to talk to counselors, to talk to
potential advisors, to talk to the judge about how it is possible
to help the youth become rehabilitated.
That is what is meant on page 4 of the bill. If the juvenile is
under age 16 and commits an unclassified or Class A felony that is
a crime against a person, then, under existing law, the burden
switches to the juvenile who committed the crime. The state
provides a defense attorney and an expert witnesses. This
legislation includes in that list of where that presumption would
reverse unlawful use of a firearm in the first and second degree
which are the drive-by shootings and the shooting at building where
there is disregard for risk that it might be occupied.
CHAIRMAN WILKEN said he appreciated the clarification. He asked if
there were any objections to passing it out of committee. There
were none and it was so ordered.
SB 66 CRIMES & CRIME VICTIMS
CHAIRMAN WILKEN introduced SB 66 as the final order of business
before the committee.
MS. CARPENETI, Criminal Division, Department of Law, said in 1994
voters of Alaska overwhelmingly adopted the victims rights
amendments, Article 1, Section 24 of our Constitution. It is very
specific in setting forth criminal rights and procedures. It also
sets forth rights of victims of crime. Since that time the
Criminal Division has learned of instances where rights guaranteed
in that particular provision have not been uniformly applied to
victims in Alaska. So the Governor's office started an
investigation that resulted with SB 66.
Ms. Carpeneti said one provision that a number of victims are
concerned with is the right to be present at every preceding where
a juvenile delinquent or a criminal defendant has a right to be
present. One of the rationales for the denial is the fact that
courts say it should be defined in law which this bill does. In
terms of the right to restitution, it adopts an amendment to our
civil statutes dealing with when a person can levy on an order of
restitution to allow a victim to levy on assets held by a criminal
defendant outside the criminal institution. At present the law
allows a victim to levy on an account held by a prisoner inside an
institution, but not outside.
Section 6 of the bill amends the definition of serious provocation
for purpose of the heat-of-passion defense to murder in the first
degree and murder in the second degree. The heat-of-passion
defense usually allows a charge of murder in the first and second
degree to be reduced to manslaughter. There have been a few
instances where courts allow an instruction in a criminal trial
allowing an imperfect or mistaken belief in the need for self
defense to be considered serious provocation and then allowing the
jury to consider it as a heat-of-passion defense. In 1980 the law
was amended to disallow that possibility. The defense of self
defense when it's a reasonable defense is a complete defense to
murder if that can be established. A mistaken belief in the need
for self defense is not a defense to a homicide and should not be
allowed in through the back door as being considered serious
provocation.
CHAIRMAN WILKEN interrupted Ms. Carpeneti saying he wanted the
entire committee to hear what she had to say and asked her if she
could come back Monday. Ms. Carpeneti agreed.
There being no further business before the committee, the meeting
was adjourned at 10:55 p.m.
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